No. 14-03-00485-CR
Memorandum Opinion filed July 20, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 178th District Court, Harris County, Texas, Trial Court Cause No. 944,113. Affirmed.
Panel consists of Justices FOWLER, EDELMAN, and SEYMORE.
WANDA McKEE FOWLER, Justice.
Appellant pleaded guilty to aggravated robbery and the jury assessed punishment at thirty years' confinement in the Texas Department of Criminal Justice, Institutional Division. In two points of error, appellant contends that (1) the trial court abused its discretion by dismissing a juror because of a disability and proceeding with eleven jurors, and (2) the trial court erred by not conducting a bifurcated trial after he pleaded guilty before the jury. We affirm.
ANALYSIS
I. Dismissal of a Juror. In his first point of error, appellant contends the trial court abused its discretion by dismissing a juror because of a disability and proceeding with eleven jurors. Generally, a jury in a felony criminal trial must consist of twelve jurors. TEX. CONST. art. V, § 13; Tex. Code Crim. Proc. art. 36.29(a). If a juror dies or becomes disabled from sitting, however, the remaining jurors have the ability to render the verdict. Tex. Const. art. V, § 13; TEX. CODE CRIM. PROC. art. 36.29(a). The decision whether a juror has become disabled from sitting is within the discretion of the trial court. Brooks v. State, 990 S.W.2d 278, 286 (Tex.Crim.App. 1999); see also TEX. CODE CRIM. PROC. art. 36.29(a). We will not reverse that decision absent an abuse of discretion. Brooks, 990 S.W.2d at 286. Disability, as it relates to article 36.29, includes "`any condition that inhibits a juror from fully and fairly performing the functions of a juror.'" Reyes v. State, 30 S.W.3d 409, 411 (Tex.Crim.App. 2000) (quoting Griffin v. State, 486 S.W.2d 948, 951 (Tex.Crim.App. 1972)). A juror may be disabled as a result of a physical condition, mental condition, or emotional state. Id. However, a juror is not disabled because of bias or prejudice for or against the defendant or the law applicable to the case. Id. at 412; Landrum v. State, 788 S.W.2d 577, 579 (Tex.Crim.App. 1990). The trial judge determined that the juror at issue became disabled as a result of her mental condition. That determination was supported by the juror's testimony that the first day of trial caused her to experience mental stress to the extent that she felt it necessary to call her psychologist, and that her psychologist felt that continuing to serve on the jury may have harmed her psychological well-being. Although at one point the juror stated that she did not think continued participation would cause her to suffer a set-back in her treatment, the judge concluded that "there's no doubt in the Court's opinion that this juror was concerned about the impact this would have upon her own mental health condition, and that it would cause possibly additional mental health problems to her." Given his opportunity to view the juror's demeanor, the judge did not abuse his discretion in weighing conflicting evidence in favor of dismissing the juror. Appellant argues that the real concern was not the juror's well-being but the possibility that her views might differ from those of the other jurors. Appellant's argument is supported by the juror's testimony that, "I guess what I really am concerned about is that if I'm the only person who feels like — um, you know, it's eleven to one. . . ." However, immediately after the juror made this statement, the judge clarified that he was not concerned about the impact on the trial, but only the impact on the juror. After further questioning, the judge determined that the "juror was only concerned about her personal mental health status" and that her statements regarding the verdict may have been because the "juror was a little reluctant to come right out and be candid about her own mental health problems." Again, the judge was able to view the juror's demeanor and did not abuse his discretion in determining that the real concern was the juror's mental health. We overrule appellant's first point of error. II. Bifurcation of the Trial.
In his second point of error, appellant contends the trial court erred by not conducting a bifurcated trial after he pleaded guilty before the jury. However, "upon entering a plea of guilty in a non-capital felony case, a defendant is not entitled to a bifurcated trial." Carroll v. State, 975 S.W.2d 630, 631 (Tex.Crim.App. 1998). Once appellant pleaded guilty, the procedure became a unitary trial, with no separate punishment phase. See id. Therefore, the trial court did not err in denying appellant a bifurcated trial. We overrule appellant's second point of error. We affirm the judgment of the trial court.